Com. v. Burno, K. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH HAROLD BURNO JR. :
:
Appellant : No. 1444 EDA 2022
Appeal from the PCRA Order Entered June 3, 2022
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000330-2003
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 28, 2023
Kenneth Harold Burno, Jr. appeals pro se from the June 3, 2022 order
dismissing his second petition for relief pursuant to the Post Conviction Relief
Act (“PCRA”) as untimely. We affirm.
On April 26, 2004, Appellant was convicted of first-degree murder,
unsworn falsification to authorities, and criminal conspiracy in connection with
the shooting death of John Irwin Davis, Jr. On September 27, 2004, Appellant
was sentenced to life imprisonment without the possibility of parole. Post-
sentence motions were denied and a timely direct appeal followed. On
July 25, 2005, this Court affirmed Appellant’s judgment of sentence. See
Commonwealth v. Burno, 883 A.2d 685 (Pa.Super. 2005) (unpublished
memorandum). Appellant filed a petition for allowance of appeal (“PAA”),
which was denied on December 8, 2005. See Commonwealth v. Burno,
889 A.2d 1213 (Pa. 2005).
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Appellant filed a timely pro se PCRA petition, claiming trial counsel had
provided ineffective assistance. Appointed counsel submitted an amended
petition and the court held an evidentiary hearing. Following the hearing, the
PCRA court denied Appellant’s petition. Appellant appealed and this Court
affirmed the PCRA court’s order denying the petition. See Commonwealth
v. Burno, 34 A.3d 221 (Pa.Super. 2011) (unpublished memorandum).
Appellant subsequently filed a PAA, which was also denied. See
Commonwealth v. Burno, 49 A.3d 441 (Pa. 2012).
On March 25, 2022, Appellant pro se filed a second PCRA petition, which
is the subject of this appeal. The PCRA court issued Rule 907 notice of its
intent to dismiss the petition without a hearing after concluding that it was
untimely filed. After reviewing Appellant’s objections to the Rule 907 notice,
the PCRA court dismissed the petition as untimely. See Order, 6/3/22, at 1.
This appeal followed.1 Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether the prosecuting attorney carries a special aura of
legitimacy, whereas the prosecutor’s opinion carries with it
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1 Appellant filed his notice of appeal after the PCRA court had announced that
his petition was dismissed, but before the court entered the order dismissing
the petition on the docket. The Pennsylvania Rules of Appellate Procedure
instruct us that “[a] notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.” Pa.R.A.P. 905(a)(5).
Accordingly, we treat the prematurely filed notice of appeal as timely filed
after the entry of the final order.
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the imprimatur of the government and induce the jury to
trust the government’s judgment rather than its own?
2. Whether the second PCRA petition was timely filed pursuant
to United States v. Johnson[, 12 F.3d 1548 (10th Cir.
1993)]?
Appellant’s brief at 3.
We begin with the pertinent legal principles. “This Court is limited to
determining whether the evidence of record supports the conclusions of the
PCRA court and whether the ruling is free of legal error.” Commonwealth v.
Diaz, 183 A.3d 417, 421 (Pa.Super. 2018). We grant great deference to the
PCRA court’s findings that are supported in the record and will not disturb
them unless they have no support in the certified record. See
Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super. 2014). However,
we apply a de novo standard of review to the PCRA Court’s legal conclusions.
See Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).
Pursuant to the PCRA, any petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment [of sentence]
becomes final[.]” 42 Pa.C.S. § 9545(b)(1). A judgment of sentence becomes
final “at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9543(b)(3).
The PCRA’s timeliness requirements are jurisdictional in nature, and a court
may not address the merits of the issues raised if the PCRA petition was not
timely filed. See Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).
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The time bar can “only be overcome by satisfaction of one of the three
statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii).” Id. The
three narrow exceptions to the one-year time bar are as follows:
“(1) interference by governmental officials in the presentation of the claim;
(2) newly-discovered facts; and (3) an after-recognized constitutional right.”
Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012).
Additionally, a PCRA petitioner must present his claim within one year of the
date the claim first could have been presented. See 42 Pa.C.S. § 9545(b)(2).
Appellant’s petition, filed more than sixteen years after his judgment of
sentence became final, is patently untimely. However, Appellant avers that
he can overcome the PCRA time bar by the application of the governmental
interference and newly discovered facts exceptions. See Appellant’s brief at
7-8; see also PCRA petition, 3/25/22, at 3, 5-6. We disagree.
The governmental interference exception permits an otherwise untimely
PCRA to be filed if a petitioner pleads and proves that “the failure to raise the
claim previously was the result of interference by government officials with
the presentation of the claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States[.]” 42 Pa.C.S.
§ 9545(b)(1)(i). In other words, Appellant was required to show that but for
the interference of a government actor “he could not have filed his claim
earlier.” Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
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Here, Appellant contends that the Commonwealth committed
government interference during closing arguments at his trial, when the
prosecutor suggested that Appellant was guilty of the crimes charged. See
Appellant’s brief at 7; see also PCRA petition, 3/25/22, at 4-5. Additionally,
Appellant avers that he filed the petition within sixty days of discovery of the
illegality.2 Id. The PCRA court found that Appellant’s reliance on the
governmental interference exception was misplaced, since his allegations
“have nothing to do with his failure to file a timely PCRA petition.” See PCRA
Court Opinion, 10/21/22, at 14. We agree. Our review of the record confirms
that Appellant has never averred that the government interfered with his
ability to file a timely PCRA petition. Thus, the governmental interference
exception does not apply.
Next, Appellant asserts that he has pled a newly discovered fact
exception in order to overcome the PCRA time-bar.3 See PCRA Petition,
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2 As of December 2018, the Pennsylvania legislature extended the sixty-day
period to assert an exception to one year. 42 Pa.C.S. § 9545(b)(2).
3 Appellant appears to have conflated the newly discovered fact exception to
the PCRA time bar with a substantive after-discovered evidence claim. See
42 Pa.C.S. § 9543(a)(2)(vi). However, these are distinct analyses.
Satisfaction of the newly discovered fact exception is a prerequisite to a
successful substantive after-discovered evidence claim. See
Commonwealth v. Diggs, 220 A.3d 1112, 1117 (Pa.Super. 2019)
(explaining that we must first discern whether we have jurisdiction before
proceeding to an analysis of the merits of an after-discovered evidence claim).
Accordingly, insofar as Appellant argues he met the after-discovered evidence
exception, we interpret his argument to include an averment that the newly
discovered fact exception applies.
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3/25/22, at 6; Appellant’s brief at 8-10. The newly discovered fact exception
set forth at § 9545(b)(1)(ii) has two components, which must be alleged and
proven as an initial jurisdictional threshold. Commonwealth v. Diggs, 220
A.3d 1112, 1117 (Pa.Super. 2019). Namely, the petitioner must establish
that: (1) the facts upon which the claim was predicated were unknown to the
petitioner; and (2) they could not have been ascertained by the exercise of
due diligence. See 42 Pa.C.S. § 9545(b)(1)(ii); see also Commonwealth
v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). In this context, “[d]ue diligence
demands that the petitioner take reasonable steps to protect his own
interests” and explain why he could not have learned the new facts earlier
with the exercise of due diligence. Commonwealth v. Burton, 121 A.3d
1063, 1069 (Pa.Super. 2015).
Appellant asserts that from February 18, 2022 until March 10, 2022, he
conducted research and reviewed the trial transcripts pertaining to his case
with the assistance of a legal assistant at the prison library. See Appellant’s
brief at 8; see also PCRA petition, 3/25/22, at 6. On March 15, 2022, the
legal assistant discovered alleged evidence of trial counsel’s ineffectiveness,
wherein counsel “failed to object to the prosecutor expressing his personal
opinions about the guilt and credibility of [Appellant]” during closing
arguments. See Appellant’s brief at 8. Since Appellant was unaware of
counsel’s oversight until the legal assistant discovered it, Appellant argues
that the testimony contained in the trial transcript should be deemed newly
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discovered facts. Id. at 10. Appellant further contends that he has shown
the necessary due diligence because he filed his PCRA petition within sixty
days of discovering counsel’s alleged ineffectiveness.4 Id. at 4.
After reviewing the record, the PCRA court disagreed, explaining:
The allegations which [Appellant] asserts do not rise to the
level of newly discovered facts, as the focus on this exception is
on the newly discovered facts, not on a newly discovered or newly
willing source for previously known facts.
In the case at bar, this Court finds that [Appellant] was
previously aware of all of the prosecutor’s remarks since he was
in the courtroom during his jury trial at the time those comments
were made. One does not have to be a trained attorney with a
degree in criminal law, as suggested by [Appellant], to conclude
whether any comments made by the prosecutor were
inappropriate or attempted to use “undue influence” on the jury.
As such, [Appellant] was aware of the prosecutor’s comments well
in advance of his alleged recent “discovery” of the transcripts.
In fact, the transcripts merely reflect what happened in
court, in [Appellant’s] presence, and were not a newly discovered
fact. Rather, they were a new source of information previously
known to [Appellant]. Once again, the information used as a basis
for the “newly discovered evidence” argument has been available
to [Appellant] for [eighteen] years. [Appellant] also failed to
provide a valid explanation as to why he could not have obtained
the transcripts earlier with due diligence.
PCRA Court Opinion, 10/21/22, at 6-7 (quotation and citation omitted).
Our review of the certified record confirms the PCRA court’s findings that
Appellant has not uncovered any new facts. Appellant was well aware of the
contents of the prosecutor’s closing argument at the time it was given because
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4 As mentioned above, 42 Pa.C.S. § 9545(b)(2) was amended, effective
December 24, 2018, to extend the time for filing a timeliness exception from
sixty days to one year. Appellant’s reference to the outdated standard is of
no moment in this matter.
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he was present. Thus, the transcripts relied upon by Appellant amount only
to a new source of facts that were known to Appellant at the time of his trial.
See Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (“[T]he
focus of [the § 9545(b)(1)(ii)] exception is on the newly discovered facts, not
on a newly discovered or newly willing source for previously known facts.”
(quotation and citation omitted)). Furthermore, Appellant has offered no
explanation for why he waited eighteen years to pursue this claim. See
Burton, supra at 1069. Accordingly, Appellant has failed to establish the
newly discovered fact exception to the PCRA time-bar.
Based on the foregoing, we find the PCRA court’s conclusion that
Appellant’s petition was untimely to be fully supported by the record and free
of legal error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2023
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